Women challenge sexism in U.S. and Canadian guest worker programs through bold and innovative NAFTA labor petitions

In July  2016, UFCW Canada and Centro de los Derechos del Migrante (CDM)  filed petitions under NAFTA’s labor side agreement alleging sex discrimination in recruitment for the Canadian  Seasonal Orange tiger liliesAgricultural Worker Program (SAWP) and the U.S. H-2A and H-2B agricultural and low wage visa programs. In early 2018, CDM filed a supplement to its petition, arguing that sex discrimination is pervasive in recruitment for professional visa programs as well as low wage visa programs.

Because of sex discrimination in recruitment, less than 4 percent of the workers who participate in U.S. and Canadian agricultural and low wage guest worker programs are women. While working conditions in guest worker programs are rife with human and labor rights issues, they still represent economic opportunity for women who would like to participate.  Moreover, women who are excluded are forced into migration through informal channels, leading to the risk of violence, human trafficking, and even worse working conditions.

These two bold and innovative petitions highlight in a tangible and human way the bifurcation of global migrant labor markets.  Global migrant labor markets bifurcated based on gender exclude women from economic opportunity based on gender stereotyping. Discrimination in recruitment and treatment of women in the global migrant labor market is the norm, not the exception.

My forthcoming article in the Employee Rights and Employment Policy Journal discusses and compares the facts and claims raised in each petition under applicable legal frameworks in Canada, the U.S., Mexico, and the North American Agreement on Labor Cooperation (NAALC). The article explores possible outcomes of the petitions given the nuances and political environments in the Canadian and U.S. cases and the current state of relations between the Government of Mexico and its North American neighbors. Finally, the article places sexism and gender stereotyping in North American guest worker programs in an international context, discussing other examples of sexism in the global labor market and existing norms in ILO Conventions and CEDAW Recommendation No. 26 on Women Migrant Workers.

Row of flowers and sidewalkIn the Canadian case, the article argues that the Governments of Canada and Mexico should renegotiate international agreements that form the SAWP to implement the recommendations of the Mexican Council on the Prevention of Discrimination. In the U.S. case, the article argues that the Government of Mexico should pursue the establishment of an Evaluative Committee of Experts (ECE) under Article 23 of the NAALC if the U.S. does not enact and enforce meaningful reforms to eliminate sex discrimination in the H-2A and H-2B visa programs.

This article is the direct result of the supportive research community that has grown up around the IntLawGrrls blog. I first presented it as part of a wonderful panel at the IntLawGrrls 10th Birthday Conference in Athens, Georgia in March 2017.  Moderated by Jaya Ramji-Nogales and featuring Karen Bravo, Deepa Das Acevedo, and Urvashi Jain, this panel focused on exclusion – whether the exclusion of transgender children from schools in India, of persons from their fundamental humanity through slavery and human trafficking, of women from the Hindu temple at Sabarimala, or of women from economic opportunities represented by international guest worker programs.  I am grateful to my fellow panelists, to IntLawGrrls, and to the Dean Rusk International Law Center at the University of Georgia Law School for a transformative experience.

Olga PedrozaMy article is dedicated in part to Olga Pedroza of Las Cruces, New Mexico, who unfortunately passed away earlier this year. Olga was my boss when I worked as a farmworker intern at Southern New Mexico Legal Services during law school. Olga introduced me to a world I never imagined, where migrant farm workers sleep on sidewalks in El Paso to catch 4:00 a.m. school buses to ride hours away to pick chiles, tomatoes, and onions in Southern New Mexico.  It was because of Olga that I sat in a renovated chicken coop in Artesia, New Mexico, talking to a farmworker who told me that he and other farmworkers did not deserve any better. After her retirement from Southern New Mexico Legal Services, Olga served as a Law Cruces City Councilor for 8 years. Olga was a tireless and lifelong advocate for the excluded. She will be missed.

Should the system of investor-state dispute settlement (ISDS) be reformed?

Should the system of investor-state dispute settlement (ISDS) be reformed? That is the question being considered by the United Nations Commission on Trade Law (UNCITRAL).

ISDS provisions are contained in about 3,000 investment treaties and investment chapters of free trade agreements. The provisions permit a foreign investor in the form of a company or individual to bring a claim directly against a State where the investor believes that its investment is being threatened by an action of the State.Foreign-Direct-Investment

FDI and ISDS

FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure, particularly in developing countries. Investment agreements aim to create an enabling environment for foreign investors. Among other things, the provisions protect them against expropriation without adequate compensation and guarantee their ability to freely move assets in and out of the country. Sovereign States, on the other hand, need to govern with a multiplicity of interests in mind and their actions can, inadvertently or deliberately, deprive the foreign investor of an intended benefit. ISDS procedures provide the mechanism by which such disputes are resolved.

The most common procedures are drawn from the world of commercial arbitration, used to determine disputes between two commercial parties. They involve the use of an arbitral tribunal which gives equal standing to the investor and the State and whose decisions are binding.

The majority of developing countries rely on foreign direct investment to foster economic growth and development. The overwhelming majority of defendants in arbitral proceedings are the governments of developing and emerging economies. The outcome of ISDS arbitral tribunals can and do impact the ability of governments to develop and implement policy.

Concerns Regarding ISDS

A note by the UNCITRAL Secretariat – “Possible reform of investor-State dispute settlement” and the Report of its Working Group on ISDS summarize expressed concerns regarding ISDS. They include:

  • Inconsistency of arbitral decisions – instances where the host State is sued by different investors on the same issue but with different outcomes from different tribunals;
  • Lengthy duration and extensive cost of ISDS – States that have been sued may not have the resources to adequately defend its policies and actions or to pay arbitral awards;
  • Lack of transparency – States are using public funds and tribunal decisions may be sealed;
  • Lack of an early dismissal mechanism to address unfounded claims;
  • Lack of a mechanism to address counterclaims by respondent States;
  • Heavy reliance on arbitrators from the investor States and who may not understand policy.

Questions at the heart of these concerns address the overall legitimacy of the process. Should a system created to address disputes between two commercial parties be used to resolve policy issues that may impact millions of people? Is it acceptable to exclude domestic investors from the same recourse available to foreign investors?

Proponents of ISDS acknowledge the validity of some of these concerns and say they can be addressed by reforming the current system of ISDS. They also point to the underlying concerns that led to the use of ISDS in the first place – politicization from the use of diplomacy to address dispute and the slow judicial processes in some countries’ domestic legal system.

Concerns are not limited to those expressed by emerging economies. The EU’s submission to the UNCITRAL Working Group highlights systemic issues it believes warrants establishment of a multilateral investment court that would replace the use of arbitral tribunals. A March 2018 ruling of the European Court of Justice concluded that the ISDS clauses in an intra-EU investment treaty were incompatible with EU law.

The Trump Administration has also inserted its perspective on ISDS in the context of the NAFTA re-negotiations. The U.S. Government has consistently expressed its displeasure at being required to abide by the decisions of international panel decisions it finds not to its liking. In August 2017, the Trump Administration floated the idea of opting out of NAFTA ISDS provisions (Chapter 11). Should the US remove itself from the NAFTA ISDS provisions this would be a major departure in US policy and a disappointment for US corporations but a shot in the arm for opponents of ISDS.

Investment Facilitation

UNCITRAL will continue its deliberations. A growing consensus appears to be that while ISDS serves a role the system needs to be reformed. Meanwhile, in December 2017, 70 WTO members agreed to begin discussions to develop the framework for a Multilateral Investment Facilitation Agreement. Discussions will not address ISDS reform, but the purpose will be to minimize the likelihood of disputes by creating a more transparent, efficient, and predictable environment for facilitating cross-border investment.

To the extent that disputes arise because of tension between development-oriented policies of host States and investor goals, conflicts can best be minimized by incorporating a true development dimension into whatever frameworks are used to manage the FDI inflows into developing countries.

(Cross-posted from DevelopTradeLaw blog.)

Trump Trade Agenda

The Trump trade agenda is in the news. Since January (2018), the Trump Administration has imposed tariffs on steel and aluminum imports, started a trade war with China, and re-negotiated the 6-year old Korea-US Free Trade Agreement (KORUS). The Administration also continues NAFTA re-negotiations and most recently is considering having the U.S. re-join the Trans Pacific Partnership (TPP) Agreement left within three days of Trump taking office.

Trade wars and trade deals appear contradictory. Can we look to some coherent agenda to explain these seemingly disparate actions? The Trump trade agenda is enunciated in its 2018 Trade Agenda Report, sent to Congress in February (2018).

The Trump Trade Agenda rests on the following five pillars:

Supporting US National Security: US trade policy and trade deals must –

  • Help to build a strong American economy, first and foremost;
  • Aggressively defend US national sovereignty in the face of multilateral trade obligations;
  • Respond to economic competitors, notably China;
  • Preserve the US lead in research and technology; and
  • Cooperate with countries that give the US reciprocal treatment and act to defend US interests against those that do not.

Strengthening the U.S. Economy: Key elements of this pillar are –

  • Anticipated benefits to corporations of the new tax regime; and
  • Reduction in regulatory burdens imposed by trade policy;

Negotiating Better Trade Deals:

  • Renegotiate NAFTA, KORUS, and any other trade deals the Administration considers bad for American workers and farmers with a view to –
  • Achieving outcomes that improve U.S. export opportunities and reduce the US trade deficit;
  • Resolving outstanding implementation issues that harm or undermine U.S. interests and U.S. export potential;
  • Rebalancing commitments on tariffs necessary to maintain a general level of reciprocal and mutually advantageous commitments under the agreement;
  • Reducing and eliminating barriers to exports of U.S. made motor vehicles and motor vehicle parts; and
  • Improving other terms to ensure the benefits of the agreement are more directly supportive of job creation in the United States.
  • Negotiate new trade agreements with other countries, noticeably, the United Kingdom and the countries of the Trans-Pacific; and
  • Focus on increasing US agricultural exports.

Enforcing and Defending U.S. Trade Laws:  Key elements of this pillar include –

  • Aggressive use of all tools available under US trade law to address violations;
  • Imposition of available remedies, as appropriate, including suspension of trade agreement concessions, imposition of tariffs, negotiation to remove the offending practice or for compensatory benefits to the United States, fees or restrictions on services; and
  • Investigation of China’s acts, policies and practices related to technology transfer, intellectual property, and innovation.

Strengthening the Multilateral Trading System: Key actions to be taken under this pillar include –

  • Vigorously defend use of US trade laws against complaints brought at the WTO, notably by China, Canada, the EU;
  • Aggressively challenge other countries’ trade laws and policies that negatively impact US exports, notably China, Canada, and India;
  • Address US concerns regarding the WTO Appellate Body, which makes final decisions on disputes brought before the organization;
  • Work with WTO Members who are ready and able to negotiate free, fair and reciprocal agreements commensurate with their status in the global economy;
  • Work to change how the WTO approaches questions of development, so that emerging economies like Brazil, China, India, and South Africa do not receive the same flexibilities as very low-income countries; and
  • Pursue negotiations on agriculture, fisheries subsidies, and digital trade at the WTO.

These pillars weave together a protectionist, America-first agenda that provides context for the seemingly disparate actions of trade wars alongside trade negotiations.

The strong anti-China bias exists because China is undoubtedly playing by its own set of rules, violating the spirit, if not the letter, of international trade law. It is not clear, however, that imposing tariffs is the solution.

More importantly, this protectionist agenda ignores the reality that all countries negotiate from their perceived national interests as well. This results in a balancing of compromises – give and take.

For example, under the re-negotiated Korea FTA, the U.S. got to export more cars, but Korea won partial exemption from the steel tariffs. NAFTA re-negotiations are struggling to address unreasonable US demands. The United Kingdom, which is considered to be in a weak negotiating position as it also negotiates its new trading landscape outside of the EU, probably does not plan to roll over to aggressive US proposals either.

Then, there is the interconnectedness of today’s global markets. US imposition of tariffs on China threatens US manufacturers who rely on imported inputs. China’s retaliation threatens the livelihood of US farmers dependent on exports to the Chinese. Which is why the Administration may be exploring another approach – coming full circle to re-join the rejected Trans-Pacific Partnership (TPP), a 12-nation pact covering 40 percent of the global economy envisioned by the Obama Administration as a multilateral counterweight to China. The other 11 countries have moved on to conclude the Comprehensive & Progressive Agreement for Trans-Pacific Partnership (CPTPP) so this time, the U.S. would be the one negotiating its way back in.

(Crossposted from DevelopTradeLaw.)

Trade Watch 2018: Brexit

On March 29, 2019 the United Kingdom (UK)is scheduled to leave the European Union (EU). On what terms?What will Brexit mean for the future of the UK’s trading relations with the EU and the rest of the world?

Just over a year ago (on March 29, 2017), UK Prime Minister, Theresa May, informed the EU of its intention to withdraw from the European Union. Her act honored the outcome of the June 23rd Brexit referendum.This act also triggered a one-year deadline for the UK to negotiate the terms of its two-phased departure process from the EU.

Agreement on Leaving the EU

withdrawal agreement finalized between the UK and the EU one-day short of the deadline, on March 28th (2018), outlines the status of the UK during the first phase – a transition period which will end March 29, 2019. During this transition period:

  • The UK will legally remain part of the EU Single Market and be bound by its EU obligations.UK citizens will retain their rights within the EU. EU citizens living in the UK (or who arrive during the transition period) will retain their residency rights during and beyond the transition period.The UK will continue to be bound by its obligations under EU international treaties, including those on trade and investment.
  • The UK will have to abide by and comply with EU laws and policies but will no longer have a voteon EU decision-making bodies.
  • The UK won the right to begin trade negotiations with other countries during the transition period. This is a questionable win as the countries seeking to negotiate during this period of uncertainty about UK’s relations with the EU may perceive the UK as weakened and unable to negotiate on equal terms. UK’s weakened negotiating position can also be said to apply in its negotiations with the EU.

During an implementation phase which will end December 31, 2020, the EU’s laws and regulations will continue to apply in the UK. The European Court of Justice will retain ultimate authority to resolve disputes during this period. The UK will continue to pay into the EU budget up through this date.

The withdrawal agreement is comprised of 168 articles covering a full gamut of the issues that will need to be addressed during this separation phase.

Negotiating Future EU-UK Trading Relations

The EU and UK now turn to negotiating the terms of EU-UK trading relationship after the end of the transition period. Observers believe this process will be complex and requires several years to get it right. However, the UK has only several months until October 2018. The following two issues illustrate the complexity of the task.

Financial Services

London is Europe’s largest financial center and benefits greatly from its ability to move capital and services freely within the single market. In 2016, financial and insurance services contributed 7.2% to UK’s GDP.  The EU’s single market is based on the “four freedoms” – free movement of goods, capital, services, and people. Brexiters’ vote to leave the EU was in large part fueled by disenchantment and fears from the inflow of persons under this free movement regime. However, leaving the EU means losing all obligations and rights under this free movement regime. The UK is hoping to negotiate an exception for its financial services. The EU, however, has emphatically stated that Britain as a non-EU member will be treated as a third country in all aspects of EU-UK trading relations. According to the EU, countries over which EU laws, regulations and judicial decisions do not apply will have only the same or similar limited access to the single market as do other non-EU trading partners. The UK will therefore be seeking to negotiate terms for its financial services sector in the future EU-UK trading relationship that come as close as possible to the position enjoyed in the single market.

Irish Border Question

The hard-won peaceful and open Irish border of the Good Friday Agreement is one unintended victim of Brexit. The Republic of Ireland, an independent country will remain in the EU. Northern Ireland, part of the United Kingdom, will not. The British government has committed to maintaining a “frictionless and invisible Irish border”. This commitment can be assured by the UK’s continued participation in the EU customs union, which provides freedom of trade in goods only. Monaco and UK bases in Cyprus are currently part of the EU customs union but not of the single market and a customs union seems a workable compromise for the UK. However, the British government is so far resisting this idea(possibly because of concerns about the financial services sector which would be excluded).

However, the withdrawal agreement has stated that if the parties fail to reach an alternative approach for the post-Brexit period, a common customs area will be maintained across all of Ireland. This “backstop agreement” will effectively leave Northern Ireland within the EU customs union if the EU-UK trade agreement does not include an alternative solution.

Questions Remain

In the withdrawal agreement, the EU and UK have agreed that “nothing is agreed until everything is agreed”. What will happen if the EU and UK are unable to negotiate terms of their future relationship by the October 2018 deadline? The transition period may need to be extended. This option is not at all advantageous to the UK which will have to abide by policies and rules it may not have had a role in shaping and continue to pay into the EU budget.

Alternatively, the UK may leave the EU without an agreement. This alternative is a worst-case scenario which no one wants or expects to happen but cannot be completely discounted.We can hope that the high stakes guarantee the parties’ commitments to staying at the negotiating table.

Opportunity to Advance a Development Dimension to Investment Facilitation

The Joint Ministerial Statement on Investment Facilitation for Development adopted on the last day of the 11th World Trade Organization (WTO) Ministerial Conference (for our discussion on the Ministerial click here), signals an opportunity to advance a development dimension to investment facilitation. The Joint Ministerial Statement called for the start of structured discussions with the aim of developing a multilateral framework for facilitating foreign direct investments (FDI).

The 70 WTO Member States that endorsed the Joint Ministerial Statement agreed to begin discussions early in 2018 to develop the elements of the framework to:

  • improve the transparency and predictability of investment measures;
  • streamline and speed up administrative procedures and requirements;
  • enhance international cooperation, information sharing, the exchange of best practices, and relations with relevant stakeholders, including dispute prevention; and
  • seek to clarify the framework’s relationship and interaction with existing WTO provisions, with current investment commitments among Members, and with the investment facilitation work of other international organizations.

The overall goal is to create a more “transparent, efficient, and predictable environment” for facilitating cross-border investment. These outlined elements appear to focus on creating a platform that will address the “resource curse” – the high levels of poverty and inequality present in many oil-rich countries and other developing/emerging economies with the “greatest natural resource endowments”.

The underlying assumption is that the framework is needed to provide greater accountability and transparency. We believe this is only a partial solution to the challenges that developing countries face with regards to FDI. These discussions provide an opportunity to advance a development dimension to investment facilitation by also providing rules of engagement to enhance development-oriented and sustainable outcomes for FDI.

FDI & Developing Countries

The majority of developing countries need foreign direct investment to foster economic growth and development. FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure in these countries. At the same time, because for the most part this investment is introduced and controlled by private companies, there is a tension that can, and often does, arise between the goals of private international capital and a country’s development needs.

In an earlier post, we discussed the PBS documentary, The Big Men, which tells the story of the discovery of the first commercial oil field in Ghana’s history. As events unfold, the Texan-based venture capitalists who bore all the financial risk butt heads with a newly-elected government whose officials refuse to endorse the initial agreement allocating to the investors the overwhelming majority of the profits. Juxtaposed with these events is the story and images from Nigeria’s Niger Delta where the “resource curse” is plain for all to see. The dire poverty, environmental degradation and the violence in that oil-rich region add poignancy to the position of the Ghanian officials, even as one wonders about their real motives.

For the Texan-based investors (which included a Ghanian who had initially discovered the resource but lacked the capital to fully exploit it) the issue was couched in the language of risk, adequate return on their investment, as well as respect for the initial contract signed with the Ghanian government. For the Ghanians, the issue was discussed in terms of their need to be able to use the resources located on their sovereign land to properly house, feed, and educate the populace.

The events that unfold in Ghana illustrate the tensions that can exist between the goals of private international capital and a country’s development needs. On the one hand, we have the private venture capitalists who invested where no one else would probably have. Ghana was not known for its oil resources. In return, however, they demanded a hefty return on their investment. But, does any government have the right to sell a country’s birthright to these investors? Yet, of what use to the country is the oil, or the diamond, or the gold left unmined?

How does the framework provide an opportunity to advance a development dimension to investment facilitation?

The Framework’s Development Dimension

The Joint Ministerial Statement recognizes the “dynamic links between investment, trade and development”. The Members also agreed that “facilitating greater developing and least-developed Members’ participation in global investment flows should constitute a core objective of the framework”.

To this end, the Members will seek to assess the needs of developing and least developed country Members to implement the multilateral framework so that technical assistance and capacity building support can be made available to address these identified needs. An integral part of the framework will be the right of Members to meet their policy objectives.

The policy objectives of responsible governments include helping their citizens gain access to jobs, decent housing, roads, education and other social services. Rich-oil countries with energy-deprived citizens is an untenable outcome. So are hotels built with foreign capital and by workers who live in shacks across the street.

Rules are needed to provide guidelines to help honest governments and fair-minded investors determine an equitable distribution of profits derived from exploitation of a country’s resources. These rules should provide tools to help countries negotiate fair deals. These rules should provide a pathway towards more development-oriented and sustainable outcomes for FDI.

These rules can and should be incorporated within the elements of the multilateral framework for facilitating foreign direct investments.

(Cross-posted from DevelopTradeLaw blog)

Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.

Making the human rights case for including compensation for workplace injuries in free trade agreements

According to lore, laws requiring compensation for workplace injuries came about as a Grand Bargain between workers and employers.  In exchange for limited liability, employers would ensure that workers receive medical care and wage benefits for workplace injuries without having to prove that the employer was at fault.  This bargain has become frayed and tattered over the last few decades as employers and insurers find ways to shirk their responsibility toward injured workers.  This is especially the case when it comes to immigrant workers, as evidenced by two hair raising reports published by Pro Publica and The New York Times in recent weeks.

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported.  Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities. Grabell and Berkes tell the story of father of three who spent a year and a half in jail and immigrant detention before being deported after suffering a severe back injury due to a fall at work.  After the worker’s doctor recommended expensive back surgery, his employer’s insurer reported him to U.S. Immigration and Customs Enforcement (ICE) for using a false social security number.  Other workers find themselves ambushed by ICE agents after giving depositions at their lawyer’s office or attending hearings.  One mother of three who had been in the U.S. since she was a teenager spent years in jail and immigration detention after suffering a workplace injury, only to learn upon finally being released that the father of her children sexually abused their 10-year-old daughter.

Having legal documentation is no guarantee that immigrant workers receive proper compensation for workplace injuries.  In his August 13, 2017 New York Times article Foreign Farmworkers in Canada Fear Deportation if They Complain, Dan Levin reported the story of a father of four from Jamaica who worked in Ontario for 9 seasons under a Canadian temporary agricultural labor program until he was sent home in 2008 after hurting his back while picking peaches.  Although he was permanently disabled, compensation for his injury ended in 2011 because he would be physically able to work as a cashier in Ontario – despite being ineligible for a Canadian work visa and unable to obtain a visa to appear in a hearing appealing the decision.  Migrant workers with temporary labor visas in the U.S. often find themselves uninvited to return to work in the U.S. after they suffer workplace injuries or complain about workplace conditions, encountering extensive cross-border administrative and legal complications when they try to obtain compensation rightly owed them under the law.

In addition to rupturing a century-old Grand Bargain between employers and workers, utilization of federal immigration procedures to avoid full payment of workers’ compensation claims is a violation of the human rights of immigrant workers.  In November 2016, the Inter-American Commission on Human Rights publicly released a report defining the right to compensation for workplace injuries as being within the scope of human rights protection.  In its report on the merits in the case of Leopoldo Zumaya and Francisco Berumen Lizalde, two undocumented  workers who were deported after making workers’ compensation claims, the IACHR found the U.S. to be in violation of its human rights obligations under the 1948 American Declaration of the Rights and Duties of Man.

In particular, the IACHR found that the U.S. violated the undocumented immigrants’ rights under Article II (right to equality before the law) and Article XVI (right to social security).  In the case of Mr. Lizalde (who, unlike Mr. Zumaya, received no compensation before being deported), the Commission found that the U.S. had violated Article XVII (right to recognition of juridical personality) and Article XVIII (right to a fair trial).  In its legal analysis, the IACHR concluded that the right to equal protection applies to nationals and non-nationals alike regardless of their legal status and authorization to work.  The Commission also observed that workers’ compensation programs fall within the definition of “proper conditions” of work under Article 45(b) of the OAS Charter, defined as those that “ensure life, health, and a decent standard of living for the worker and his family…”  These rights apply when the State allows private persons (such as insurers and employers) to act with impunity toward the human rights of others.  Though not integral to its analysis, the IACHR mentioned that countries have an obligation to protect the physical integrity of people within their jurisdiction.

One surprising source of rights cited by the IACHR was the 1994 North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA).  Under the NAALC, the U.S., Canada and Mexico agreed to promote 11 labor principles, including workplace safety; compensation for workplace injuries and illnesses; and protection of migrant workers.

NAFTA is the only U.S. free trade agreement that includes workers’ compensation in its definition of labor law – though Canada continues to include workers’ compensation in its FTA labor provisions.  In addition to requiring effective enforcement of labor laws, the NAALC contains cooperative mechanisms that could be used by member states to address the complications that arise in the case of cross-border workers’ compensation and other labor cases involving immigrant workers.  Employers and insurers that shirk their obligation to injured workers transfer the cost not only to the injured worker herself, but to the health care system of her country of origin.

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should.  Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights.   While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues.  They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.